Farmers safe from lawsuits if they help with research

SALEM, Ohio – Cows, pigs and poultry make manure, and as that waste sits on a field or in a lagoon, it releases ammonia and hydrogen sulfide.

But how much air pollution is too much?

No one has an answer. But the U.S. Environmental Protection Agency is working with livestock groups to find one.

The way it looks now is farmers will pay a fee and volunteer to let the EPA monitor their farm for two years. In exchange, they will be safe from clean air violation lawsuits. This concept is called “safe harbor.”

Farmers who do not sign one of these consent agreements will be vulnerable to lawsuits for past and current air pollution.

This program is still in the development stage, cautioned Ohio Livestock Coalition Executive Director David White, and a date hasn’t been set when it will be complete.

Response. With neighbors and environmental groups keeping close tabs on farmers, lawsuits threaten agricultural producers. The livestock industry needs hard data to respond to accusations, White said.

Otherwise, courts will take on these air pollution cases and make the rules for agriculture without scientific data.

There needs to be a way for farmers to protect the environment and still operate profitably without overly burdensome rules, White said, adding he hopes the EPA’s research will be a step in that direction.

“Court decisions are already impacting agriculture’s bottom line more and more and more,” he said.

There just isn’t enough air emissions data out there about manure storage and application, said Virginia Ishler, extension associate with Penn State’s Dairy Alliance.

“The whole point of safe harbor is to get time for more research,” Ishler said.

If farms are protected from lawsuits, she said it will give the industry more time to gather data on instruments used to measure pollution and how manure storage affects emissions.

Waiting on dairy. Swine and poultry groups stepped up and allocated money for the research, but dairy is financially lagging, said Curt Gooch, senior extension associate with Cornell University’s Pro-Dairy program.

The biggest problem is that dairy checkoff dollars cannot be used, and the industry is having a hard time coming up with the $1.3 million to $3 million needed for the research, he said.

This means dairy farmers who sign up will have to pay a maximum of $2,500 to help pay for the study. This is in addition to the one-time fee of $200-$1,000 that all participating livestock producers will pay based on their number of animals.

If enough farmers do not sign up and funding doesn’t come from industry groups, the research will not happen, Gooch said.

“Then producers will be vulnerable to lawsuits and violations,” he said.

Not all farmers who sign up will be monitored, however all will be granted safety from air emissions lawsuits.

Implications. New York farmer Doug Shelmidine worries about other implications if the research isn’t done on dairy farms.

His biggest worry is rules will be made without the dairy industry’s input. The EPA will still develop the guidelines, but they will be based on swine or poultry, he told Farm and Dairy.

“EPA will fit us into a mold whether it fits us or not,” Shelmidine wrote in a letter urging the dairy industry to participate.

“If we’re not part of the consent agreement and don’t participate in monitoring, we leave our businesses exposed,” he continued. “As with water quality, courts, not bureaucracy, will drive standards and regulations.”

Dairy Alliance’s Ishler agrees.

If the poultry and swine industries are part of the air emissions research and protected from lawsuits, environmental groups will turn their full attention toward industry that isn’t protected, specifically dairy, she said.

Will they sign? After the consent agreement is complete, Ishler admits farmers may be wary to sign up.

Any time people deal with the government, particularly a regulatory agency, they are cautious, Ishler said.

“But if we can get the information to them and clarify what they’re hearing, they might be more willing,” she said.

Ishler said many producers weren’t aware EPA was proposing these agreements so it will take time for them to catch up.

White and Gooch both say they’re waiting for further legal opinion before making more comments about the consent agreements.

But they also say farmers need to carefully review the agreements for themselves.

In particular, they should get the help of a lawyer with an environmental law background, White stressed.

(Reporter Kristy Hebert welcomes reader feedback by phone at 1-800-837-3419, ext. 23, or by e-mail at

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*      Virginia Ishler

      Dairy Alliance, Penn State



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